Lockridge v. Minneapolis & St. L. Ry. Co.

• Decision Date: 11 April 1913
• Citation: 161 Iowa 74,140 N.W. 834
• Parties: LOCKRIDGE v. MINNEAPOLIS & ST. L. RY. CO.
• Court: Iowa Supreme Court

161 Iowa 74

140 N.W. 834

LOCKRIDGE

v.MINNEAPOLIS & ST. L. RY. CO.

Supreme Court of Iowa.

April 11, 1913.

Appeal from District Court, Polk County; Lawrence De Graff, Judge.

Action to recover damages resulting from a collision between an automobile and a railway train at a public crossing. Affirmed.George W. Seevers and W. H. Bremner, both of Minneapolis, Minn., and E. D. Samson, of Des Moines, for appellant.

W. S. Ayres, of Des Moines, for appellee.

GAYNOR, J.

This action is brought to recover damages from the defendant claimed to have resulted from a collision occurring between a train, operated by defendant, and an automobile driven by the plaintiff, at a point where the defendant's tracks cross West Ninth street in the city of Des Moines. It appears that on the 15th day of April, 1911, the plaintiff was proceeding south on Ninth street in an automobile, and that while crossing the track of defendant, where it intersects Ninth street, his automobile was struck and destroyed by a train operated by the defendant. It appears that West Ninth street runs north and south; that the defendant's tracks at the point of the collision run east and west across Ninth street. For the purpose of this case, we will say there are four tracks, counting from the north, over which the defendant was required to pass in order to avoid an accident at the point where the collision took place. It appears that it is 12 feet and 3 inches from the north rail of track No. 1 to the north rail of track No. 2 immediately south. That at the time of the collision, there was a string of box cars on track No. 1 on the west side of Ninth street, and flush with the curbing. That on track No. 2, immediately south, there was a string of gondola cars, a few feet west from the curbing, and they were loaded with coal. That immediately south of track No. 2, there is a track known as the “repair track,” which extends from the east, within about 6 1/2 feet of the curbing on the west. That it is 12 feet 1 1/2 inches from the north rail of track No. 2 to the north rail of this repair track. That immediately south of this repair track is what is known as the “main line,” and it was on this track that the train was being operated at the time of the collision. Immediately west of the west end of the repair track is a shanty 6 1/2 feet north and south and 4 feet 2 inches east and west, and 8 feet 6 inches from the west end of the repair track, and 18 inches west of the west curb line of the street. That this shanty is 8 feet 4 inches south of the south rail of track No. 2 and 6 feet 8 inches north of the north rail of the main line on which the collision occurred. It also appears that it is 38 feet 2 inches from the north rail of track No. 1 to the north rail of the main track. That it is 21 feet 2 inches from the south rail of track No. 2 to the north rail of the track known as the main line on which the accident occurred.

It appears that at the time plaintiff approached the north track and until he reached the shanty, hereinbefore referred to, he was traveling at the rate of five miles an hour. At least, there is evidence from which the jury might have so found, and it appears that, traveling at the rate of five miles an hour, it would have taken the plaintiff approximately five seconds to reach the south line of the shanty where he would have clear view of the main line to the west. It appears that at that rate of speed it would have taken the plaintiff about one second to pass from the south rail of track No. 2 to a point immediately east of the shanty; probably a second and a quarter. It appears that the plaintiff was sitting on the west side of the automobile, driving, and on the side left of him sat his son. On the side immediately back of him sat a Mrs. Shera, and on the left of Mrs. Shera was sitting the plaintiff's wife. There is evidence that while the plaintiff was crossing the track No. 2, or immediately after he had crossed, his wife notified him that there was a train coming. It does not appear that she notified him on what track the train was moving. It is claimed that she saw the moving train between the trucks of the cars standing on tracks Nos. 1 and 2. This seems improbable, if not entirely impossible, from her elevated position. If she saw the cars at any time while on track No. 2, it must have been after they had passed the obstructions on track No. 2, and a view obtained by her through the space existing between the shanty and the gondola cars on track No. 2. It is apparent that, sitting in the rear of the automobile, any view obtained by her must have been after the automobile had come from behind the obstructions, and the front end of the automobile would then have been within 15 or 18 feet of the north rail of the main line.

Defendant's train that collided with the automobile was loaded with sand. The engine was attached to the west end of the train. The train was backing. It started from a point about 250 feet west of the west line of Ninth street. It was backing at about the rate of 4 or 5 miles an hour. It appears that the defendant's track west of Ninth street, and to Eleventh street curves somewhat to the north. It does not appear that there was anything to obstruct plaintiff's view to the east while crossing these tracks. It appears that the plaintiff, when proceeding southward on Ninth street, and prior to the collision, was traveling on the west side of the street. It appears that the plaintiff was accustomed to running automobiles, and that this automobile was in good order and the brakes working well. It appears that the plaintiff had frequently passed over this crossing before in going to, and returning from, the city, and knew that there was a good deal of switching done at this point. It appears also that the car was muffled and was making very little noise. There is evidence that the train moved about 75 feet after it struck plaintiff's automobile.

The plaintiff claims that the defendant was negligent in this: (1) That defendant had no gates erected and in operation at this crossing. (2) That though it kept a flagman at the crossing, the flagman failed and neglected to warn the plaintiff of the approach of this train. (3) Defendant failed and neglected to ring its bell or give other warning. (4) That defendant failed and neglected to have any lookout upon the rear of the train as it approached this crossing. (5) The plaintiff claims that there are five tracks across Ninth street at that crossing; that upon the north track the defendant had placed a long string of cars which extended into the street; that on the second track, immediately south, there was a string of cars close to the street, thereby obstructing the view of the plaintiff to the west; that the injury to the plaintiff was the proximate result of the negligence of the defendant complained of, and the plaintiff himself was free from any negligence, on his part, contributing to the injury of which he complains. All the charges of negligence made by the plaintiff were denied by the defendant in its answer. There are other matters tendered in the answer; but, under the view we take of the case, they were not defensive in their character. Upon the issues thus tendered, the cause was tried to a jury and a verdict rendered for the plaintiff. That a motion for a new trial was filed by the defendant and overruled, and judgment entered by the court on the verdict. From the action of the court in overruling the motion for a new trial and entering judgment upon the verdict, this cause is brought to this court for review.

The defendant assigns and argues several errors alleged to have been committed by the court, which may be grouped as follows: (1) That the evidence shows such conduct on the part of the plaintiff, contributing to the injury of which he complains, that the court should, at the conclusion of the evidence, as a matter of law, have found and determined that the plaintiff was guilty of such negligence as precluded recovery on his part, and should therefore have instructed the jury to return a verdict for the defendant, for that reason. (2) That the verdict is against the evidence and contrary to the instruction of the court. (3) That no negligence of the defendant contributing to the injuries complained of was shown, and for this reason the verdict should have been directed by the jury.

The determination of the question raised by these assignments of errors, so presented and argued, necessitates an examination of the record to ascertain whether or not they existed.

[1] At the outset it must be born in mind that, if there is more than a scintilla of evidence to sustain the action of the court and the verdict of the jury, this court will not interfere. It is not the province of this court to weigh the evidence, or to sit in judgment upon the credibility of the witnesses. Where there is a clear conflict in the evidence as to the existence of any fact material to the proper determination of the case, this court will not invade the province of the jury, reconsider, and weigh the evidence bearing upon the question in controversy. The jury are the triers of the fact. They are the sole judges of the weight of the evidence and the credibility of the witnesses, and in the absence of any showing of passion or prejudice, their judgment upon the facts is final in all cases where there is evidence in the record supporting their finding. This has been so often said that it is almost academic.

We proceed now to an examination of the record, for the purpose of determining whether or not there is evidence in the record upon which the verdict of the jury is supported.

We will first consider the evidence bearing upon the first ground of complaint made by the plaintiff in his petition, to wit, that there were no gates erected and in operation at this intersection. This is conceded.

[2] (2) That although the defendant kept a flagman at said intersection,...